The MEC for Health: Gauteng Province and Others v Buhle Waste (Pty) Ltd

On 15 July 2022, the MEC for Health: Gauteng Province advertised a tender for comprehensive healthcare waste management services for a 36-month period. The closing date for bids was 19 August 2022, with all bids valid for 90 days (expiring on 17 November 2022). The respondent, Buhle Waste (Pty) Ltd, was among 15 bidders. On 17 November 2022, the MEC requested an extension of the bid validity period until 15 February 2023, but the email was only sent on 18 November 2022. Buhle Waste, the incumbent service provider, consented to the extension on 18 November 2022 and continued rendering services. Multiple subsequent extensions were requested and granted. Buhle Waste launched an urgent application on 9 October 2023 seeking interdictory relief in Part A pending review proceedings in Part B. Prior to the hearing, Buhle Waste discovered the tender had been awarded to Tshenolo Waste (Pty) Ltd and another company. At the hearing, the high court proposed to deal with the 17 November 2022 extension upfront as dispositive, limiting itself to the declaratory relief sought in the alternative, and declared the tender had lapsed and set aside the award.

• Whether the high court followed the correct procedure in setting aside administrative action by granting declaratory relief instead of proceeding by way of review under PAJA
• Whether the high court granted relief that was not sought by the applicant
• Whether Buhle Waste impermissibly avoided the provisions of PAJA by seeking declaratory relief
• Whether the high court could raise and determine an issue (the validity of the 17 November 2022 extension) that had not been fully canvassed by the parties
• Whether parties opposing the application were prejudiced by being denied access to the Rule 53 record before having to answer

1. The appeal is upheld with costs including the costs of two counsel where so employed. 2. The order of the high court is set aside and replaced with the following: 'The application is dismissed with costs such to include the costs of two counsel where so employed.'

Administrative action should ordinarily be challenged through the provisions of PAJA and not by way of declaratory relief, as this would defeat the purpose of section 33 of the Constitution and the national legislation enacted to give effect to it. A litigant cannot avoid the provisions of PAJA by going behind it and seeking to rely on section 33(1) of the Constitution or the common law. Where administrative action is challenged, the proper procedure is a review application under PAJA, which allows affected parties to access the Rule 53 record and file comprehensive answering affidavits. Courts are limited to adjudicating on the issues raised by the parties in their pleadings or affidavits, and may not raise new issues mero motu and pronounce on them without the issues being fully canvassed, subject to limited exceptions where no prejudice will be caused. Declaratory relief under section 21(1)(c) of the Superior Courts Act is inappropriate where there are disputed factual and legal issues requiring access to the administrative record, and does not ordinarily extend to setting aside administrative action. The avoidance of PAJA procedures compromises the public interest in finality of administrative action and prejudices other parties affected by the administrative decision.

The Court noted that Buhle Waste acted opportunistically by continuing to benefit financially from servicing the Department of Health during the extended period while deliberately avoiding timeous review proceedings under PAJA. The Court referenced the 'exclusionary stipulation' recognized in Aventino Ecotroopers Joint Venture, which permits departments to exclude bids of bidders who fail to respond or refuse to hold their bids valid for requested extended periods, and noted that any party unhappy with such conditions could have challenged them on review. The Court emphasized the importance of the Rule 53 record as "an invaluable tool in the review process" citing Turnball-Jackson v Hibiscus Coast Municipality, noting that it may help shed light on what happened and why, give the lie to unfounded ex post facto justifications, substantiate grounds of review, and assist the reviewing court's function. The Court observed that while parties may forgo their right to rely on the Rule 53 record, they cannot make that decision for other parties to the litigation.

This case is significant in South African administrative law as it reinforces the principle that the Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides the proper mechanism for challenging administrative action and that litigants cannot circumvent PAJA's requirements by seeking declaratory relief instead. The judgment emphasizes the importance of procedural fairness in administrative law matters, particularly the right of affected parties to access the Rule 53 record before filing answering affidavits in review applications. The case also clarifies the limits of declaratory relief in administrative law contexts and the dangers of avoiding PAJA's prescribed procedures, including its time limitations and condonation requirements. It underscores the adversarial nature of South African civil litigation and the principle that courts must adjudicate on the issues as defined by the parties, not raise new issues mero motu without allowing parties an opportunity to address them. The judgment protects the public interest in finality of administrative action and the rights of successful tenderers.